Legal Services Bill [HL]

I am again grateful to the noble Lord for explaining what he is seeking to do. I shall try to explain the approach that we have taken and the purpose behind these clauses. We begin from the principle that the new regulatory framework applies to each of the approved regulators and to their regulatory arrangements. As the body that is responsible for adjudicating breaches of the Law Society’s rules of professional conduct, it is essential that the SDT is part of that new framework. Clause 171 brings the Solicitors Disciplinary Tribunal within the oversight of the Legal Services Board for the purposes of any changes to its rules that it seeks to make. Noble Lords will be aware that under Section 46(9) of the Solicitors Act, rules made by the tribunal about its practice and procedures must be agreed by the Master of the Rolls. This clause provides that in the future alterations in the tribunal’s rules will require the agreement of the Legal Services Board instead. This is in line with a number of other changes we have made in the Bill to the current functions of the Master of the Rolls in relation to the solicitors’ profession, the approval of their professional rules and appeals from the SDT. It is important to emphasise that the Solicitors Disciplinary Tribunal is a fully independent body. This clause simply brings the tribunal, which is part of the arrangements for regulating lawyers, within the oversight of the LSB. It does not make it an approved regulator. Initially the Joint Committee on Human Rights had some concerns about the impact of this change on the compatibility of the SDT with Article 6(1) of the European Convention on Human Rights. However, in its latest report the Joint Committee now agrees that the transfer of responsibility for rule approval from the Master of the Rolls to the LSB is unlikely to lead to any significant risk of incompatibility with Article 6(1). As the noble Lord said, Clause 172 allows for the LSB in restricted circumstances to make a direction. It is important that it has this power, which I emphasise is limited in that it can be used only where the SDT is failing to perform its functions to an adequate standard, or at all—for example, dealing with cases unreasonably slowly. The LSB can direct the SDT only to take such steps as are necessary to remedy the failure. The LSB cannot interfere with the determination of any individual case. It is, if you like, a backstop power. Any direction by the LSB under Clause 31 is subject to the procedure and preconditions in Schedule 7, which include the requirement for the board to obtain the advice of the Lord Chief Justice, whose view in relation to the effect of any direction on the independence and impartiality of the SDT will be of great importance. I would be concerned if there was no high-level oversight over the way in which the SDT operates, not in the determination of individual cases but if the tribunal is failing in its functions. For example, if it is operating in a completely inefficient way and is failing to get through cases within a reasonable time as required by Article 6 of the European Convention, it must be absolutely clear that the LSB can step in and direct it to remedy the failure. Without this clause nobody will have that power. As I said, the SDT will continue to operate as a self-governing entity. Indeed, the Bill reinforces that independence, giving it greater administrative independence by making clear that it can set its own budget. The LSB will have a role in approving that budget. Our intention here is to allow for the possibility—it is important to emphasise that it is just a possibility, and a rather distant one at that—that if it were failing, the LSB may direct it to take steps. I do not believe that this power limits its status as an independent and impartial tribunal. Clause 173 allows for modifications to be made to its functions by order rather than requiring primary legislation. I would not want there to be any suspicion that this seeks to fetter its independence. I make it absolutely clear at the outset that the modifications to its functions can be made only with its consent—Clause 69 as modified by Clause 173. Nothing can be forced on the tribunal. Therefore, I am confident that its independence will not be compromised by this clause and, as I said, so is the Joint Committee on Human Rights. Currently, changes to the tribunal’s functions have to be made by primary legislation, which does not give it the necessary flexibility. The intention behind this power is to ensure that it is able to modify its functions as quickly and efficiently as possible to reflect changes in the market for legal services and, as a result, in the jurisdiction it may have to exercise. For example, changes under the new ABS regime may occur quickly and it may need to make relatively quick modifications to its statutory functions to address these changes. The clause allows the modifications to be achieved through a recommendation by the LSB to the Lord Chancellor and with the consent of the tribunal. The modification is then made by order. The order can be made only in the same form as that recommended. The clause will allow the SDT to propose modifications of its functions to the Legal Services Board. The LSB is not bound to accept them, but there is clear benefit in the tribunal being able to make these changes by other means than primary legislation. A further insurance against interference is that modifications can be made only for the purpose of enabling the tribunal to perform its role more effectively and efficiently. The tribunal will be the judge of that. I reiterate that it will remain an independent tribunal. Modifications will be made only with its consent. I hope that gives the reassurance that the noble Lord seeks and that he will feel able to withdraw the amendment.